Wednesday, January 23, 2013

My Amicus Brief in Bowman v. Monsanto

Over the last several days, I have posted a number of briefs
that have been filed by various parties in Bowman
v. Monsanto. Today I filed my own Amicus
brief in the case, in support of affirmance, available here.

Here is my "Summary of Argument":

Intellectual property plays a critical role in the
development of self-replicating technologies such as Monsanto's genetically
modified soybeans. Without some mechanism to constrain the use and
dissemination of replica products, free riders would quickly flood the market
with copies and impair the innovator’s ability to secure an adequate return on
investment. Because of the ease with which genetically modified soybeans can be
replicated by any user who comes into possession of even a single seed,
whatever the source, enforceable patent protection is essential to maintain an
adequate incentive for innovation.

The potential impact of this case goes well beyond
Monsanto and soybeans. A decision that results in the exhaustion of patent
rights in copies of self-replicating products could dramatically undermine
investment in a host of promising green technologies for sustainably feeding,
fueling and healing the world. It might also discourage commercialization of synthetic
biology, the much heralded next iteration of the biotechnology revolution.Such a dramatic and far-reaching shift in the
patent landscape is certainly not warranted, particularly on the facts of this
case.

It is important to recognize that it is petitioner,
not the Federal Circuit, who is seeking to create an exception to the doctrine
of patent exhaustion.In essence,
petitioner is arguing for an expansion of the doctrine to encompass not only
patented products that have been the subject of an authorized sale, but also
copies of the product - copies that were never the subject of an authorized
sale. Petitioner alleges that this drastic measure is warranted because the use
of Monsanto’s product inherently and unavoidably results in the production of
copies, citing numerous hypothetical policy concerns. But these potential
concerns are not presented in this case, involving a farmer who intentionally
used and benefitted from Monsanto’s patented technology without paying for
it.To the extent any of these concerns
actually become an issue in the real world, they can and should be addressed in
a manner that does not effectively deprive innovators of the ability to enforce
their patents with respect to self-replicating technologies.

It is informative to consider how analogous concerns
have been addressed with respect to another important self-replicating
technology, computer software. Even though the use of many software programs
inherently and unavoidably results in the production of a copy on the user's
computer, which would technically constitute copyright infringement, it makes
little sense for software companies to sue their customers for this sort of
infringement. It is simply not a problem.If the potential for an infringement lawsuit became a concern, the
software company could address it by explicitly authorizing purchasers to make
a copy of the software, at least to the extent that such copying is an
essential step in using the software. In any event, to resolve any lingering
concern, Congress took the step of amending the copyright statute to explicitly
exempt authorized users of computer software from liability for producing a
copy that is used solely as a necessary element of running the software.

Significantly, it has not been deemed necessary to
expand copyright's first sale doctrine (copyright’s analog to the doctrine of
patent exhaustion) in a manner that exhausts patent rights in copies of
copyrighted software that are inherently created when the software is used. To
do so would effectively strip software developers of meaningful copyright
protection once a first round of copies has been sold and replicated. In the
same way, and for much the same reasons, it is unnecessary to expand the
doctrine of patent exhaustion with respect to self-replicating patented
technologies like Monsanto's seeds. To the contrary, to do so would effectively
deny enforceable patent protection to many self-replicating technologies.

Congress is in the position to weigh competing
interests, and if necessary enact legislation to address any unique policy
concerns presented by the interplay of intellectual property rights and
self-replicating technologies.It has
done so with respect to computer software, and in a manner that does not
deprive software producers of the ability to enforce their copyrights against
free riders. It can do so with respect to patented self-replicating
technologies as well. In fact, a bill is currently pending in Congress that
would effectively create a compulsory license in patented seeds. Leaving aside
the question of whether this would be the best approach, it illustrates that
Congress is fully capable of addressing concerns expressed by petitioner and
its amici without entirely stripping innovators like Monsanto of their patent
rights.

215 comments:

You have missed the target - if you had read the Federal Circuit document you will have read the following concerning the Monsanto Technology Agreement:

"Monsanto authorizes growers to sell second-generation seed to local grain elevators as a commodity, without requiring growers to place restrictions on grain elevators’ subsequent sales of that seed."

Monsanto are trying to bolt the stable door on a situation of its own making. There is no patent issue it is pure contract. To try and say it is a patent issue is to try and give primacy to patent/IP law over contract law and any agreements made subsequently to a patent being filed, which effectively over turns alot of law. Hence the Supremem Court really has little choice but to find in favour of Bowman.

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About Me

I am a law professor at the University of Missouri-Kansas City School of Law. My primary research interests lie at the intersection of biotechnology and intellectual property. This blog provides analysis and commentary on recent developments relevant to this area of the law.